State v. Lynn, 21609

• Citation: 284 S.E.2d 786,277 S.C. 222
• Decision Date: 02 December 1981
• Docket Number: No. 21609,21609
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Patrick C. LYNN, Appellant.

Page 786

284 S.E.2d 786

277 S.C. 222

The STATE, Respondent, v. Patrick C. LYNN, Appellant.

No. 21609.

Supreme Court of South Carolina.

Dec. 2, 1981.

Deputy Appellate Defender Vance J. Bettis of S. C. Com'n of Appellate Defense, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Lindy P. Funkhouser and Preston F. McDaniel, and Sol. James C. Anders, Columbia, for respondent.

HARWELL, Justice:

Appellant Patrick C. Lynn was charged with the crimes of burglary and first degree criminal sexual conduct which occurred on May 17, 1980, in Columbia, South Carolina. The jury found him guilty of first degree criminal sexual conduct and not guilty of burglary. The trial judge sentenced him to imprisonment for thirty (30) years. Appellant alleges that the trial court committed several errors requiring reversal of his case. We disagree and affirm.

Appellant acted as his own co-counsel in conjunction with appointed counsel. During his cross-examination of the prosecutrix, appellant attempted to impeach her with a prior inconsistent statement. Upon her arrival at the hospital immediately after the assault, the prosecutrix had described for the attending social worker what had happened. The social worker took notes during the conversation; the notes were later incorporated into the physician's report. At trial on direct examination, the prosecutrix testified that appellant sexually assaulted her, then put a pillow case over her head, and assaulted her again. On cross-examination, the appellant questioned the prosecutrix: "Didn't you tell the social worker your assailant put a pillow case over your head and then assaulted you?" As the trial judge, defense counsel, and the solicitor were discussing whether the prosecutrix should be provided with a copy of the doctor's report before continuing her testimony, the prosecutrix interrupted. She admitted making the statement to the social worker but explained that she was very upset at the time, that she thought the social worker only wanted a general overview, and that she had later given a very detailed consistent statement after she regained her composure. Appellant excepts because the trial judge refused to allow him to proceed with cross-examining the prosecutrix on the inconsistent statement.

If a witness admits a prior inconsistent statement, he has impeached himself, and further evidence is inadmissible. State v. Owenby, 267 S.C. 666, 230 S.E.2d 898 (1976); McMillan v. Ridges, 229 S.C. 76, 91 S.E.2d 883 (1956); 98 C.J.S. Witnesses § 610 (1957). In addition, the cross-examination of a witness to test his credibility is largely within the discretion of the trial judge, and his decision whether to allow the contradictory testimony will not be disturbed on appeal except for manifest abuse of discretion. State v. McFadden, 259 S.C. 616, 193 S.E.2d 536 (1972); Elliott v. Black River Elec. Co-op., 233 S.C. 233, 104 S.E.2d 357 (1958). There was no abuse of discretion; the trial judge properly limited the cross-examination after the prosecutrix admitted making the prior inconsistent statement.

Next, appellant alleges error when the trial court sustained a prosecution objection without allowing him to respond. Appellant's defense to the criminal sexual assault charge was consent. Attempting to prove he knew the prosecutrix very well, appellant asked her on cross-examination several personal questions. After allowing some of appellant's questions, the trial judge sustained the State's objection when appellant asked the prosecutrix whether she preferred white wine over other alcoholic beverages. Appellant's counsel asked to make an argument on the objection, but the trial judge refused the request, citing Circuit Court Rule 11. Counsel then objected because he was not allowed to respond to the objection.

Our Circuit Court Rule 11 states in pertinent part: "No argument shall be had on any objection to the admissibility of evidence unless especially requested by the presiding judge." The trial court thus properly denied counsel the opportunity to make an argument. Appellant contends that he should have been allowed to respond to the objection. It has been stated that when an offer of proof is necessary, it is error for the trial court to refuse counsel an opportunity to state what he proposes to prove by the evidence offered. 88 C.J.S. Trial § 73 (1955). However, an offer of proof was unnecessary in this case. The answers to appellant's questions were unimportant to his defense; the questions were posed in such fashion to imply the appellant knew the prosecutrix intimately regardless of the ultimate answers; appellant was testifying without taking the stand. In any event, the right of appellant's counsel to enter objections during the trial as he saw fit was preserved; appellant was deprived of no right, nor prejudiced in any way, because the trial judge apparently concluded that argument of counsel would be of no benefit in ruling upon objections made. See, State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967).

Appellant alleges that the trial court erred in refusing to grant a mistrial when evidence of appellant's bad moral character was introduced by two of the State's witnesses. The first witness volunteered testimony concerning appellant's involvement with the law in Florida. No objection was made to the introduction of the testimony, but appellant's counsel moved for a mistrial after the State completed its case. Failure to contemporaneously object to the question now advanced as prejudicial cannot be later bootstrapped by a motion for a mistrial. State v. Groome, 274 S.C. 189, 262 S.E.2d 31 (1980); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294 (1977), cert. denied 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977). Any objection to the testimony was waived. See, State v. Barron, 268 S.C. 318, 233 S.E.2d 110 (1977).

The second witness was asked a question which reflected upon appellant's character. Before the witness answered, however, appellant's counsel objected and the jury was excused. Upon its return, the jury was given a curative instruction to disregard the question. An instruction to disregard incompetent evidence usually is deemed to have cured the error in its admission unless it is probable that, notwithstanding the instruction, the accused was prejudiced. A trial judge has wide discretion in considering the merits of a motion for a mistrial when incompetent evidence is received and later stricken out. State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976); State v. Britt, 235 S.C. 395, 111 S.E.2d 669 (1959); State v. Singleton, 167 S.C. 543, 166 S.E. 725 (1932). Under the facts of this case, we conclude that the trial judge did not abuse his discretion by failing to order a mistrial after he had given the curative instruction.

In April 1980, appellant pled nolo contendere to a Florida prosecution for criminal sexual assault. Prior to this trial, appellant's counsel requested a ruling as to whether the former plea of nolo contendere could be used to impeach appellant should he decide to testify. At the conclusion of the State's case, the court ruled that the plea could be used for impeachment purposes. The appellant did not testify. Appellant alleges that the trial court's ruling was prejudicial error. South Carolina has never before had the opportunity to consider the admissibility of nolo contendere pleas for impeachment purposes. We have held, however, that a plea of nolo contendere may not be used as substantive evidence of guilt in a subsequent proceeding. In re Anderson, 255 S.C. 56, 177 S.E.2d 130 (1970). ¹

In the majority of jurisdictions, a conviction or sentence of a witness upon a plea of nolo contendere is admissible as affecting credibility in like manner as a conviction or sentence on a guilty plea. See, 146 A.L.R. 867 and 152 A.L.R. 253, 293. In those jurisdictions, there exists a statute similar to S.C.Code Ann. § 19-11-60 (1976), which allows a person convicted of a crime to testify but allows the conviction to be shown as bearing on credibility. Inasmuch as a plea of nolo contendere is equivalent to a conviction, it is the rule in many jurisdictions that a judgment following such a plea may be shown as affecting credibility. 81 Am.Jur.2d Witnesses § 570 (1976). We recognized in Kibler v. State, supra, the many similarities between a plea of nolo contendere and a plea of guilty. We therefore conclude that a plea of nolo contendere may be used for impeachment purposes in a subsequent proceeding.

Appellant argues that the trial court should have admitted character evidence to bolster the credibility of a defense witness whose character had not been attacked. Appellant alleges that his father, a defense witness, was a stranger to the community and therefore under our rule in State v. Lyle, infra, appellant should have ...